H. William Scott, Admr. D/B/N of Laura B. Dickey Estate v. Bradford National Bank

• Decision Date: 07 May 1935
• Citation: 179 A. 149,107 Vt. 226
• Parties: H. WILLIAM SCOTT, ADMR. d/b/n OF LAURA B. DICKEY ESTATE v. BRADFORD NATIONAL BANK
• Court: Vermont Supreme Court

179 A. 149

107 Vt. 226

H. WILLIAM SCOTT, ADMR. d/b/n OF LAURA B. DICKEY ESTATE v. BRADFORD NATIONAL BANK

Supreme Court of Vermont

May 7, 1935

February Term, 1935.

Motion for Directed Verdict---Effect When Both Parties Move for Directed Verdict---Right to Jury Where Evidence Conflicting---Evidence Admitted Provisionally as for Consideration on Exceptions Where Not Stricken Out---Trial---Duty of Party Objecting to Evidence Admitted Provisionally To Move To Have It Stricken from Record When Promise Unperformed, if He Does Not Wish Evidence Considered---Banks and Banking---Burden of Proof as to Plea of Payment of Deposit to Depositor---Payment as Affirmative Defense---Burden as to Proof of Agency Where Bank Claims Deposit Paid to Depositor's Agent---Principal and Agent---Merely Assuming To Act as Agent as Insufficient To Establish Agency---Husband and Wife---No Presumption as to Husband's Agency for Wife---Courts---Jurisdiction of Probate Court To Determine Question of Right of Wife's Estate to Her Bank Deposit Paid to Her Husband, the Subsequent Administrator of Her Estate---Aid of Probate Court by Common Law Courts To Obtain Money Found To Be Due Estate---Executors and Administrators---Limited Jurisdiction of Administrator De Bonis Non---When He May Sue for Unadministered Assets---Conversion by former Administrator of Money of Estate to His Own Use as Affecting Right of Administrator De Bonis Non To Sue Therefor---Debts Due from Administrator to Estate as Assets Thereof---Necessity of Proceeding in Probate Court To Determine Liability of Administrator for Default or Devastavit---Necessity That Administrator De Bonis Non Seeking To Have Accounting from Former Administrator Cite Him into Probate Court---Relation of Common-law Courts to Probate Court---To What Extent Administrator De Bonis Non May Recover Property of Estate Which Has Gone without Administration to One Legally Entitled Thereto---Necessity that Amount of Recovery, if any, to Which Administrator De Bonis Non May Be Entitled Be Determined in Probate Court---Right of County Court on Appeal from Probate Court To Exercise Equity Powers---Disposition of Case Coming from County Court so as To Permit Probate Court To Exercise Jurisdiction, Leaving County Court in Position To Aid Probate Court if Necessary.

1. That both parties moved for directed verdict did not, alone warrant directed verdict one way or other.

2. Defendant, by moving for directed verdict and claiming that evidence was all its way, held not thereby to waive right to claim that some of it was.

3. Where both parties move for directed verdict, unless it affirmatively appears that neither party wishes to go to jury, either may do so, if there is conflict of evidence on material facts in case.

4. Where evidence was admitted on defendant's unperformed promise to provide basis for its admission by proof of agency, but plaintiff, upon failure of defendant to supply such proof did not move to have evidence stricken from record, such evidence was for consideration in Supreme Court on defendant's exceptions.

5. Where evidence is admitted which is relevant only in connection with other pertinent facts, upon assurances of counsel that such facts will be supplied later, in event such promise is unperformed and objecting party considers evidence of sufficient importance to be prejudicial and wants it expunged from record, he should move to have it stricken out otherwise, it stands for consideration.

6. In action by administrator de bonis non against bank to recover amount of deposit which plaintiff's intestate once had in such bank, held that, plaintiff having shown such deposit in bank, defendant had burden of establishing its plea of payment.

7. Payment is an affirmative defense with burden of proof on him who alleges it.

8. In action by administrator de bonis non against bank to recover amount of deposit which plaintiff's intestate once had in such bank, where bank claimed payment to another as agent of depositor, held that, agency being question of fact defendant had burden of proof as to issue.

9. That one assumes to act for another is not enough to establish agency, and, standing alone, is not admissible as evidence of agency.

10. There is no presumption that husband acts for his wife by her authority, though fact of coverture is circumstance entitled to consideration in connection with other circumstances tending to show agency.

11. In action in county court by administrator de bonis non against bank to recover amount which plaintiff's intestate once had in such bank, where intestate's husband, shortly prior to her death and while purporting to act as her agent, wrongfully withdrew such deposit, and, after being appointed administrator of her estate, rendered his final account showing balance of $2,620.95 for distribution, which was balanced by credit of equal amount as having been paid to him as "husband and only heir," account omitting any reference to bank deposit, such administrator de bonis non claiming existence of brother of his intestate entitled to share in her estate, on question of jurisdiction of county court held that jurisdiction of probate court had not been exhausted and was adequate in all respects to deal with matters involved, except as to issuance of final process.

12. If and when probate court has found that funds of intestate's estate, requisite for brother's share therein, must be supplied, by reason of wrongful payment to another, and amount required is there determined, aid of common-law courts can be invoked to obtain money.

13. Administrator de bonis non is officer of limited authority, and his title and jurisdiction extend to and over unadministered assets only.

14. When unadministered assets exist in specie, administrator de bonis non may sue for and recover them from whomsoever wrongfully withholds them.

15. If bank deposit, which once stood in name of intestate, and shortly prior to her decease was wrongfully withdrawn by her husband who subsequently became administrator of her estate, was held separate and apart from his own money until administrator de bonis non was appointed, latter could, if such funds were needed for administration, sue for amount; but if, prior to intestate's death, her husband who subsequently became her administrator, had converted such money to his own use, it had lost its identity, had ceased to be an asset, and administrator de bonis non could not recover it as unadministered asset.

16. Where intestate's husband, shortly prior to her death and while purporting to act as her agent, wrongfully withdrew from bank deposit standing in her name, and, after such conversion, upon his wife's decease was appointed administrator of her estate, such debt, by operation of law, became cash assets in his hands and subject to jurisdiction of probate court, debts due from administrator being assets de facto to be accounted for in probate court.

17. Under foregoing circumstances liability of original administrator for default or devastavit does not belong to intestate's administrator de bonis non, but these matters must first be pursued in probate court.

18. When administrator de bonis non seeks accounting from former administrator for money withheld, he must cite latter into probate court.

19. Common-law courts do not interfere in settlement of estates except in aid of probate court.

20. Law never requires vain or useless thing to be done, hence when, without administration, property has gone to one legally entitled thereto, administrator will not be allowed to reclaim it, unless necessary for full administration.

21. Administrator de bonis non will not be allowed in equity to recover from heir property of estate that has gone to him without administration, or from one who has paid such heir money which would otherwise be assets of estate, any more than is required to complete administration.

22. In action in county court by administrator de bonis non against bank to recover amount which plaintiff's intestate once had in such bank, where intestate's husband, shortly prior to her death and while purporting to act as her agent, wrongfully withdrew such deposit, and, after being appointed administrator of her estate, rendered his final account showing balance of $2,620.95 for distribution, which was balanced by credit of equal amount as having been paid to him as "husband and only heir," account omitting any reference to bank deposit, such administrator de bonis non claiming existence of brother of his intestate entitled to share in her estate, held that, as it would be necessary for defendant to get into court with equity powers to avail itself of doctrine that, where money had been paid to heir, recovery should not be allowed of more than was required to complete administration, administrator de bonis non should be sent to probate court, since on appeal from that court equity powers are vested in county court.

23. In such action, where it was necessary that county court be reversed because probate court had jurisdiction adequate in all respects to deal with alleged wrongful payment to husband of intestate's bank deposit, and with facts as to existence, survival, and rights, if any, of her alleged brother in any part of her estate, and, if entitled to share therein, to determine amount of such share, held that case would be reversed and sent back to county court, there to remain on its docket until matters involved are determined in probate court; and then, if it becomes necessary to enforce collection of any sum required of defendant, case in county court will be available in aid of probate court.

ACTION OF CONTRACT by administrator de bonis non to recover amount of deposit which plaintiff's intestate once had in defendant bank....