Florence W. Trask v. Noah S. Walker's Estate

• Decision Date: 19 October 1926
• Parties: FLORENCE W. TRASK ET AL. v. NOAH S. WALKER'S ESTATE. FLORENCE W. TRASK ET AL. v. SARAH A. WALKER'S ESTATE
• Court: Vermont Supreme Court

134 A. 853

100 Vt. 51

FLORENCE W. TRASK ET AL. v. NOAH S. WALKER'S ESTATE.

FLORENCE W. TRASK ET AL. v. SARAH A. WALKER'S ESTATE

Supreme Court of Vermont

October 19, 1926

May Term, 1925.

APPEAL from the probate court for the district of Rutland. From a decision of the probate court, dismissing petitions for further accounting in respective estates, plaintiffs in each case appealed to county court. Trial by court at the March Term, 1923, Rutland County, Chase, J., presiding, and petitions dismissed. The plaintiffs in each case excepted and appealed. The opinion states the case.

Judgment in each of the above cases is affirmed and certified back to probate court.

While Justice TAYLOR sat in hearing of these cases, he deceased before the opinion was written.

Marvelle C. Webber for appellants.

Lawrence Stafford & Bloomer for appellee.

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

OPINION

BUTLER

These are two cases heard together. Each is an appeal from the probate court, dismissing a petition for further accounting by Adah S. Walker, executrix of the estates of her father and mother, Noah S. Walker and Sarah A Walker. The petitioners, Florence W. Trask and Jessie W. MacLennan, are the sisters of Adah. They claim that, in the final accounts filed by Adah in each of the two estates, she neglected to account for certain property belonging thereto. The trial court found that she had duly accounted for all the property of the two estates, and the cases are here on exceptions by the petitioners.

By the findings of fact, it appears, that Noah S. Walker died testate, in Clarendon, November 19, 1910, leaving surviving him his widow Sarah A. Walker, then in advanced years, five daughters, and one son. All of the children, except Adah S. Walker, were married and living in homes of their own. Two daughters lived in California, two in Kansas, and the son in Clarendon.

Mr. Walker had been a man of considerable property, consisting largely of mortgage loans on real estate in California and Kansas. To carry out his expressed intention to give his children before he died whatever property he intended them to have directly from him, he gave each child the equivalent of ten thousand dollars in two installments of five thousand dollars each, the first in 1905, the second, not long before his death.

His last will was dated July 2, 1910, and admitted to probate January 10, 1911. Sarah A. and Adah S. Walker were named as joint executrices but Sarah A. declined to act, and Adah qualified and acted as sole executrix and fully settled the estate, the final decree in probate court being dated February 13, 1912. By his will Noah S. Walker provided for a trust fund of fifteen thousand dollars and left to his wife the remainder of his property, but, to quote from the findings:

"Before he died, however, he had given and transferred to his wife, or to Adah S. Walker, for the benefit of his wife, all of his property not otherwise disposed of by him except that portion which has already been duly accounted for by Adah S. Walker, in her settlement of his estate."

After the death of Noah S. Walker, Adah lived with her mother until the latter's death, June 1, 1918. She spent practically all her time in caring for her mother and her property. She gave up her study of music in Boston and devoted herself to her mother in a kind and loving way which was perfectly satisfactory and fully appreciated. The property which Sarah A. Walker received from her husband was freely used in travel, repairs on the home place, medical attention for Mrs. Walker, and in whatever way the latter desired. The relations between the mother and daughter were mostly intimate and friendly.

The last will and testament of Mrs. Walker was admitted to probate June 25, 1918. Adah qualified and acted as sole executrix; and, again to quote from the findings:

"She has already, as executrix of that estate, accounted for all the property Mrs. Walker owned at the time of her death. That not so accounted for, had been spent by Mrs. Walker during her life or given to Adah at different times. These gifts by her to Adah were substantial ones."

The findings of fact further state:

"The entire transcript of the case is hereby referred to and made a part of the findings of fact for the purpose of testing the findings made as to being sustained upon the evidence, and whether the plaintiff is entitled upon the evidence to some or all of the requests for findings, the additional requests and the supplemental requests, and for any proper purpose in connection with the findings of fact; and also so far as it may be proper for the Court to make use of the same with reference to the judgment."

The paragraph in the findings of fact first above quoted is attacked by the petitioners by an exception on the grounds that the evidence is insufficient to support the findings; that there is no sufficient evidence not under objection and exception to sustain the findings; that as a matter of law upon the evidence, the finding is unsupported; and that the finding is too general, indefinite, and vague, and not sufficiently explicit as to what property was so disposed of or as to the facts and circumstances constituting the gift or transfer to enable this Court to say as a matter of law whether Noah S. Walker did so legally dispose of his property, which was not otherwise accounted for.

If there is legitimate evidence fairly and reasonably tending to support this finding, it must stand. Hyde Park Lumber Co. v. Shepardson, 72 Vt. 188, 47 A. 826; McGaffey v. Mathie, 68 Vt. 403, 35 A. 334; Kelton, Admr. v. Leonard et al., 54 Vt. 230. The fact that this Court might have reached a different conclusion from the evidence is not the test. Platt, Admx. v. Shields & Conant, 96 Vt. 257, 271, 272, 119 A. 520.

The evidence showed without dispute that Adah S. Walker as executrix, accounted to the probate court for fifteen thousand dollars, invested in Kansas bonds, which composed the trust fund established by the will of Noah S. Walker for the benefit of his grandchildren, and which securities were subsequently turned over to the trustees for that purpose; for the homestead in Clarendon valued at one thousand dollars, and for four cemetery lots, valued at twenty dollars. It also appeared that at some time prior to his death, Noah S. Walker, in addition to the property accounted for, was possessed of five mortgages upon real estate in California, totaling in amount thirteen thousand, nine hundred dollars; two lots of land in the same state, called the "Dos Robles Lots," which were thereafter sold for nineteen hundred dollars; bonds of two thousand dollars secured by a mortgage upon an apartment house in Chicago, and known as the "Vieto Bonds"; and certain Kansas mortgages other than those constituting the trust fund, the value of which did not appear, which the evidence tended to show constituted the larger part of his estate. These are the items for which the plaintiffs claim an accounting by Adah S. Walker as executrix of her father's estate.

The five California mortgages, as appeared without dispute, were assigned by Noah S. Walker to Adah, July 1, 1910, and the assignments were duly recorded, through the agency of Mr. Trask, husband of one of the plaintiffs, February 3, 1911. The Dos Robles lots were conveyed by Noah S. Walker and Sarah A. Walker, his wife, to Adah by two deeds dated June 2, 1910. These transactions were intended to be for the benefit of Sarah A. Walker, and the assignments and deeds ran to Adah "for convenience" and it was the expectation that she should, in turn, convey to her mother. In fact, assignments of the California mortgages from her to her mother were prepared, but not executed. The reason for the proposed transfer through Adah was the understanding of the latter that the law did not permit a direct conveyance or assignment from a husband to his wife. The assignments from Adah to her mother were never completed, but there was evidence presently to be considered in connection with the exception relating to the finding with regard to the estate of Sarah A. Walker, that the latter gave ten thousand dollars of these securities to Adah, and that the proceeds of the remainder when paid, were delivered by Adah to her mother.

The Dos Robles lots were deeded by Adah to purchasers in California, by deeds dated November 25 and 29, 1910. Adah testified that the proceeds of the sales, which amounted in all, as has been said, to nineteen hundred dollars, were turned over by her to her mother, and she identified a deposit of twelve hundred dollars in her mother's account in the Rutland County National Bank, under date of August 26, 1911, as a part thereof. Part of the purchase price was left on mortgage, and a deposit in Mrs. Walker's account in the Rutland Savings Bank of five hundred and twenty-five dollars under date of May 15, 1912, was identified by Adah as being so much of the proceeds of the mortgage when paid.

So far, then, as the five California mortgages and the Dos Robles lots are concerned, it cannot be said that the findings of the trial court that Noah S. Walker, "before his death had given or transferred to his wife or to Adah S Walker, for the benefit of his wife all his property not otherwise disposed of," is without supporting evidence. There was no written assignment of the Vieto bonds. A few months before his death, and on July 6, 1910, Noah S. Walker sent these bonds to Mr. Hiland Southworth, his agent and son-in-law, in Kansas, for collection. They were in litigation at the time of Mr. Walker's death. After some delay the bonds were paid and the proceeds came into Adah's hands in April, 1917, at which time she testified she gave the money to her...