Drake v. Wild

• Decision Date: 20 December 1897
• Citation: 70 Vt. 52,39 A. 248
• Parties: DRAKE v. WILD et al.
• Court: Vermont Supreme Court

39 A. 248

70 Vt. 52

DRAKE

v. WILD et al.

Supreme Court of Vermont. Windsor.

Dec. 20, 1897.

Appeal in chancery, Windsor county; Tyler, Chancellor.

Bill by Louisa B. Drake against John Wild, executor of the will of Cyrus B. Drake, deceased, and others. Heard on the pleadings and master's report. Prom a pro forma decree dismissing the bill with costs, oratrix appeals. Affirmed.

D. C. & J. D. Denison, for appellant. Stewart & Wilds, for appellee Middlebury College.

Gilbert A. Davis and A. M. Albee, for other appellees.

TYLER, J. This case was before the court upon a demurrer to the bill, and is reported in 65 Vt. 611, 27 Atl. 427. The following are the material facts since reported by the master: Cyrus B. Drake and Louisa. Smith were married in the year 1839, and the oratrix, their only child, was born in 1843, and always lived with her parents. Louisa died in the year 1870, and Cyrus B. in 1878. Mrs. Drake's father died in 1867, and her share of his estate was $4,457.08, which the administrator in December, 1868, paid to Mr. Drake, by her instructions. Mr. Drake retained possession and control of the fund to the time of his death, and managed it as he thought best, without accounting to any one. As he collected it, he mingled it with his own property, and out of it the family was supported; and, in case of any surplus, it was invested by him. His wife and daughter had great regard and respect for him, and perfect confidence in his integrity and ability. He received the fund to hold in trust for his wife, and did not intend to make any claim thereto, and there is no evidence of any change in his Intention until he included the fund in his will. Mrs. Drake died intestate, and no administration has been taken on her estate. Mr. Drake made his will the day before he died, the second clause of which is as follows: "I give and bequeath to my daughter, Louisa B. Drake, my homestead, consisting of about one-fourth of an acre of land, and house, barn, and outbuildings thereon, to be hers absolutely; also all the household furniture, clothing, books, keepsakes, and pictures now in said house, or as much thereof as she may desire and select. I also direct that my homestead shall be appraised at its fair cash value, and a sum which, added to said appraisal, will make in the whole the sum of eight thousand dollars, shall be invested to the best advantage, and the earnings or interest thereof shall be paid to my said daughter, Louisa B., annually, for her support, during her natural life; and at her decease said amount so invested shall be paid Middlebury College, at Middlebury, Vermont." Nothing in the third and fourth clauses is in issue here. By the fifth, sixth, seventh, and eighth clauses, he gave to the American Board of Commissioners for Foreign Missions, to the Home Missionary Society, and to the American Missionary Association, $2,000 each, and to the American Tract Society, $500, which four bequests he directed to be paid, respectively, as soon as the amount could be realized from his estate. He gave the residue of his estate to the American Education Society. The will was duly probated and allowed, and the executors named therein were appointed by the probate court. Appraisers and commissioners were also appointed, who respectively performed their duties, and returned their reports to that court. In August, 1878, an inventory of the estate was returned, showing real estate amounting to $750, and personal property to the amount of $14,058.25, which included all of Mr. Drake's and his wife's property. The debts proved were $1,065.63. The oratrix knew the contents of the will the day after its execution, and understood that her father must have intended thereby to dispose of his own and his wife's estate. She subsequently presented an account of $54 against the estate, which was allowed and paid. She presented no other claim. She continued to reside upon the homestead (which was all the real estate her father owned at his decease) until February, 1891, when she sold it and received the money for it; and she took possession of the household furniture and other personal property given her by the will, appraised at $541.25, and has ever since retained it. The executors also set apart a trust fund for her use as hereafter stated. The oratrix knew that the inventory of her father's estate included the property of her mother as well as of her father. The executors supposed that it was all the property of her father, and managed and controlled it in that belief. The oratrix gave them no information on the subject until the year 1888, when she claimed to Mr. Wild, the executor, that she ought to have certain gas stock, because it came from her mother's estate. In November, 1885, the executors settled an account in the probate court, in which they credited themselves with the real estate and the household furniture, and other personal property specifically bequeathed to the oratrix, and which they had passed over to her, leaving in their hands a remainder of $11,131.10. This settlement was made upon due notice by publication under an order of the probate court, and, upon the settlement being made, the executors resigned; and their resignation was acted upon and accepted on June 2, 1886, and John Wild was appointed administrator de bonis non. No other account was settled in the probate court, except one on May 27, 1896, by which it appeared that the administrator had in his hands $12,555.63. Quite a portion of the property of the estate included in the inventory, and managed by the executors, consisted of Western mortgages, drawing 8 and 10 per cent. interest. The executors and the oratrix thought that the fund provided for in the will for the benefit of the oratrix was first to be provided for and kept good, without reference to whether or not there were sufficient assets to pay all of the specific legacies. Acting upon this belief, the executors selected what they considered the best securities, sufficient to make up the amount of said trust fund, and set them apart for the purposes of the fund. This was approved of by the oratrix, and for a time the income from these securities was paid to her by the executors. Included in these securities were mortgages upon which the interest was subsequently defaulted, and then the executors decided to, and did, pay the oratrix 6 per cent. interest on the trust fund, which was satisfactory to her. Payments were thereafter made until 1888 or 1889, when the judge of probate informed the administrator that the trust fund did not stand prior to the other legacies in the will, that the oratrix had received more than she was entitled to, and that, as the estate had diminished by losses, the trust fund should be proportionately lessened. Upon learning this, the oratrix suggested that a portion of the estate came from the estate of her mother. No interest has been paid to her since July, 1889, and nothing has been paid to the defendants. The oratrix now prays that the executor "be ordered to pay over to her the trust property so belonging to her mother, with all the income and increase thereof."

The general rule in equity, in such cases may be stated as follows: Where a will assumes to give one of its beneficiaries property of another person, for whom provision is likewise made in the will, the latter cannot take the provision made for him in the will, and also hold the property, but must elect which he will take; that, by taking a beneficial interest under the will, he is held thereby to confirm and ratify every other part of the will; that, if an heir...