Collins v. Estate of Collins

• Decision Date: 18 October 1932
• Parties: STEPHEN B. COLLINS v. ESTATE OF MABEL V. COLLINS
• Court: Vermont Supreme Court

162 A. 361

104 Vt. 506

STEPHEN B. COLLINS v. ESTATE OF MABEL V. COLLINS

Supreme Court of Vermont

October 18, 1932

May Term, 1932.

Witnesses---Competency---G. L. 1891---Waiver of Statute Making Witness Incompetent---Question of Law---Exception as to Claimed Inference from Finding Made---Contracts---Construction of Written Instruments---Husband and Wife---Fraud in Procuring Property Settlement---Right To Rely on Representations Made---Intent of Maker of False Representations That They Should Be Relied On---Presumption in Favor of Judgment---Right of Defrauded Party To Affirm Contract Procured by Fraud and Bring Action To Recover for Fraud.

1. Where administrator permitted person having claim against estate to testify in relation thereto before commissioners on estate, without objection, he thereby waived provisions of G L. 1891 making witness incompetent, and such waiver bound estate in hearing on appeal from commissioners' decision.

2. In proceeding by husband to establish claim against estate of deceased wife, exception to findings of referee on ground that they necessarily involved finding by him that final contract of property settlement between parties did not fix their status, held without merit, findings referred to not containing implied finding of which defendant complained.

3. In such proceeding, where defense was that contract of property settlement fixed status or parties, such defense raised question of law to be decided by court on facts reported by referee.

4. Ordinarily, construction of written contract is for court.

5. Where husband was induced to enter into property settlement with wife, who was then residing in apartment in which both had formerly lived, but from which husband had gone some months prior to agreement and to which he had had no access thereafter until agreement was signed and wife had removed therefrom, upon false representation that property in apartment which had been there when he left, and which he was to receive under such agreement, was still there, held that he was entitled to rely on his wife's representation, and not required to make inquiry in matter.

6. Where wife, before property settlement with husband, made false representation to him respecting property in apartment in which she lived and to which he had no access, which property he was to receive under settlement agreement, held that, it fairly appearing that she knew representation was false, she must be taken to have intended that representation should be acted upon by husband, for that intent inhered in nature of transaction.

7. Supreme Court will presume in favor of judgment that court below inferred essential facts from facts found.

8. Where husband was induced to enter into property settlement with his wife by her false representation, such fraud made contract voidable, but he had right to affirm contract and bring action to recover damages occasioned by such fraud.

9. In proceeding by husband to establish claim against deceased wife's estate for fraud in procuring property settlement held that finding of referee as to value of property was sustained by evidence as to its entire value, notwithstanding his inability to find value of certain specific articles separately.

10. In such proceeding, although contract of property settlement between husband and wife was through trustee, refusal of referee to find that action should be brought in name of trustee held proper, question being one of law for court.

11. Where no exception was taken to judgment on ground that action should have been brought in name of trustee, question was not before Supreme Court for consideration.

12. Findings of referee as to certain bills contracted by wife before execution of property settlement by husband, held harmless to estate of deceased wife against which husband was prosecuting claim for damages, where items involved were disallowed by court.

APPEAL from finding of commissioners on the estate of Mabel V Collins, deceased. Heard on referee's report by court at the September Term, 1931, Franklin County, Sherman, J presiding. Judgment for claimant Stephen B. Collins. The defendant estate excepted. The opinion states the case.

Judgment affirmed. To be certified to the probate court.

Wm. R. McFeeters for the defendant.

M. H. Alexander for the plaintiff.

Present: POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

THOMPSON

This is an appeal by the administrator of Mabel V Collins' estate from the allowance by the commissioners thereon of a claim in favor of the plaintiff. The case was heard on a referee's report and defendant's exceptions thereto. The exceptions were overruled and judgment rendered on the report for the plaintiff to recover $ 571 damages and his costs. The defendant brings the case here on exceptions to the judgment and to the action of the court in overruling his exceptions to the report and to the refusal of the referee to comply with certain requests for findings.

The plaintiff was the husband of the defendant's intestate. At the hearing before the referee he offered himself as a witness to prove the items in his specification. he did not claim that he was a competent witness under any exception to G. L. 1891, but he did claim that the defendant had waived the provisions of that section of the statutes by allowing him to testify as a witness at the hearing before the commissioners without objection. The defendant objected to his testifying upon the ground that he was disqualified by the statute, and he testified under the defendant's exception.

It appears from the record that the plaintiff did testify at the hearing before the commissioners to all matters relating to his claim as appears in his specification, and that the administrator was present and made no objection to his testifying.

It has been held repeatedly by this Court that since the statute is for the benefit of the representative of the deceased party, it is competent for the administrator to waive its provisions and permit the other party to testify. Paine v. McDowell, 71 Vt. 28, 31, 41 A. 1042; Ainsworth v. Stone, 73 Vt. 101, 50 A. 805; Dee v. King, 77 Vt. 230, 59 A. 839; Cowles v. Cowles' Estate, 81 Vt. 498, 71 A. 191; Comstock's Admr. v. Jacobs, 84 Vt. 277, 281, 78 A. 1017, Ann. Cas. 1918A, 679; Id., 89 Vt. 133, 137, 94 A. 497, Ann. Cas. 1918A, 465.

The defendant says that the point in question was not passed upon in any of these cases; that in each case the administrator called the disqualified party as a witness; and that the extent of the holdings in these cases is that the administrator, by using the other party as a witness, waived his incompetency under the statute, and the latter was therefore competent to testify as a witness in his own behalf. But the point in question was raised in Green's Admr. v. Mason, 84 Vt. 289, 79 A. 48, 50, and it was there held that "the representative of a deceased party may waive the disqualification of the statute either by himself calling the disqualified witness or by permitting him to testify without objection." And the waiver of the incompetency of the plaintiff as a witness in the proceedings before the commissioners bound the defendant in the hearing on appeal. Cowles v. Cowles' Estate, supra; Comstock's Admr. v. Jacobs, 89 Vt. 133, 137, 94 A. 497, Ann. Cas. 1918A, 465. As the case stood before the referee the plaintiff was competent to testify and it was not error to receive his testimony.

The defendant excepted to most of the findings on the ground that they are based upon the testimony of the plaintiff, an incompetent witness; but, for the reasons we have just given, these exceptions are not sustained, and will not be referred to again.

It appears from the referee's report that the plaintiff and his wife were tenants by the entirety of one-half of the Collins Block in St. Albans and lived together in an apartment in the block for seven years before they separated. They had acquired a quantity of furniture and household goods which were kept and used by them in their apartment. They had domestic troubles and separated, and on September 16, 1926, the plaintiff left the apartment, as furnished, in the possession of his wife. They never lived together thereafter, but she continued to occupy the apartment and was in control of it until she left it February 13, 1927. There were negotiations for a settlement of their property affairs, and on February 5, 1927, they executed a contract, through a trustee, whereby the plaintiff was to pay his wife certain sums of money and do certain other things, not material here. The referee found that the plaintiff performed all of his part of the contract in every respect.

Paragraph 6 of the contract reads as follows: "Said wife in consideration of said premises * * * * agrees to vacate the apartment now occupied by her * * * * on or before the 12th day of February, 1927, and leave in said apartment as the property of her husband all of the household furniture and contents of the apartment occupied by her, excepting her clothing, ornaments and baggage, the property so left to be the sole property of the husband."

Mrs. Collins vacated the apartment the morning of February 13, 1927, and went to Montreal. The plaintiff took possession of the apartment that morning. He then found that most of the contents of the apartment had been removed, and all of the articles mentioned in his specification were gone. This was the first time he was in the apartment after he left in September, 1926.

During the negotiations for a settlement the attorney for the deceased submitted to plaintiff's attorney a written statement, Plaintiff's Exhibit 2, as a basis upon which a settlement might be had. It appears from this statement that the...