Edward S. Watkins v. Hiram Merrihew's Estate

• Decision Date: 09 January 1926
• Parties: EDWARD S. WATKINS v. HIRAM MERRIHEW'S ESTATE
• Court: Vermont Supreme Court

131 A. 794

99 Vt. 294

EDWARD S. WATKINS v. HIRAM MERRIHEW'S ESTATE

Supreme Court of Vermont

January 9, 1926

January Term, 1925.

APPEAL IN CHANCERY in proceeding for specific performance of agreement between cotenants. Heard on pleadings and facts found by the chancellor, after the March Term, 1923 Chittenden County, Thompson, Chancellor. From a decree dismissing plaintiff's bill the plaintiff appeals. The opinion states the case.

Decree affirmed and cause remanded.

H A. Bailey for the plaintiff.

Charles F. Black for the defendant.

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

OPINION

WATSON

This bill is brought for specific performance of the agreement set forth in the statement of the case. No exception was taken to the facts found by the chancellor. A decree was rendered dismissing the bill with costs to the defendant. The case is here on the plaintiff's appeal. The decree must be affirmed for several reasons.

Under the two deeds from Bernard Porter the nine grantees took severally an undivided one-ninth interest in Ben Law Island, as tenants in common. Hiram Merrihew, one of the cotenants, died intestate on July 18, 1907, and one Harvey Merrihew was appointed administrator of his estate. Harvey Merrihew died on May 8, 1922, and on June 15, following, Lincoln Merrihew was appointed administrator de bonis non of the estate of Hiram Merrihew and has acted as such from that time. This bill was served on defendant October 13, 1922, and it was filed the 18th of the same month.

At the time of Hiram Merrihew's death he owned his original undivided one-ninth interest in the island, and an undivided one-fifth of the interest of Samuel E. Burnham, another of the original cotenants. The findings state that Hiram Merrihew's estate now owns such interests. That this statement is not true in fact nor in law, appears beyond question from the record before us. On the death of the intestate his said interests in the island at once vested in his heirs by descent, subject to the lien of the administrator when later appointed. Babbitt v. Bowen, 32 Vt. 437; Austin v. Bailey, 37 Vt. 219, 86 A. D. 703; Alexander v. Stewart, 50 Vt. 87; Bridgman v. St. J. & L. C. R. R. Co., 58 Vt. 198, 2 A. 467; Coolidge v. Taylor, 85 Vt. 39, 80 A. 1038. But such lien was given only to the extent of so much as was required to pay the debts and expenses of administration which could not be discharged from the personal estate of the decedent. G. L. 3367; Dunbar v. Dunbar, 3 Vt. 472; Maeck v. Sinclear, 10 Vt. 103; Bennett v. Camp, 54 Vt. 36. And when the administrator had paid such debts and expenses, his lien on the real estate was discharged, his authority over that property terminated, and the heirs held such property acquit of him and of his lien. Nason v. Smalley, 8 Vt. 118, 127; Coolidge v. Taylor, cited above.

The intestate had been dead more than fourteen and three-fourths years at the time of the decease of the first administrator upon his estate. A month and seven days later, the defendant administrator de bonis non was appointed, and still later, October 7, 1922, the bill in this case was subscribed and sworn to by the plaintiff, the oath saying "that the statements contained in the foregoing petition (bill) by him suscribed are true." The time allowed by the probate court to the original administrator for the payment of debts could not exceed three years from the time of granting the letters of administration. P. S. 2905 (G. L. 3385). And as more than six months beyond the time which might have been allowed to the original administrator for such purpose expired before his death, the time could not be extended to the new administrator. P. S. 2907 (G. L. 3387); Alexander v. Stewart, 50 Vt. 87. Nor was there any occasion therefor. The bill contains the direct allegation "that said island interest is all the estate of said Hiram Merrihew remaining to be administered." Defendant's answer in no way denies or alludes to the fact so alleged. Yet it is a fact which may fairly be presumed to have been within the knowledge of the defendant when he made oath to his answer (June 14, 1923, at which time he had been acting as administrator de bonis non for a full year), and so that allegation will be taken as admitted. Ross v. Shurtleff, 55 Vt. 177. Thus this fact, material and controlling as to one feature of the case, alleged by the plaintiff and admitted by the defendant, stands established on the record by judicial admission. Holbrook v. Quinlan & Co., 84 Vt. 411, 80 A. 339; Woodruff v. Donaldson 90 Vt. 242, 97 A. 984. It necessarily follows that at the time this bill was brought the real estate interests in question were not owned by the estate of Hiram Merrihew, nor did his administrator de bonis non then have any lien thereon; but said interests were then in fact and in law the absolute property of the heirs of the deceased owner. Consequently the bill was not well brought (Dale v. Roosevelt, 6 Johns. Ch. 255), nor was the tender rightly made to the administrator as...