Hubbard v. Bugbee

Decision Date20 February 1886
Citation2 A. 594,58 Vt. 172
PartiesJOHN B. HUBBARD v. SUSAN A. BUGBEE
CourtVermont Supreme Court

Assumpsit, general and special. Heard on the report of a referee, December Term, 1883, Caledonia County, Ross, J presiding. Judgment for the defendant. The special count set up the material facts, averred that the defendant had a separate estate, created the debt on its faith and credit and when discovered promised to pay it. Pleas. general issue Statute of Limitations and coverture at the time of making the alleged promises. The referee found, that the defendant was the daughter of John Bowen and Hannah B. Bowen, who lived on a farm in Concord, owned by Hannah B., who deceased sometime before November, 1885; that the will of said Hannah B. was duly probated in said November, and Joel Fletcher was appointed executor; that the defendant was married in 1853 to Edwin Bugbee, and lived with him as his wife until his death in 1881; that at the time of the death of the defendant's mother, the defendant and her husband were living on said farm, and continued to live there and carry it on until the death of said Edwin, except that he was away some two years, and that the defendant still lives on the farm and owns it under the will. The referee also reported, that at the time of the death of the defendant's mother there was on the farm, belonging to her, certain personal property, mainly live stock, which "came into the possession of the defendant and her said husband upon the mother's death, the father living with them, not they with him, they carrying on the place, not he"; that, "the defendant's title to said live stock was such only as said will gave her"; that said husband "was not very thrifty and never had much property"; that "in the spring of 1858 said Edwin was owing several parties for goods and property bought by him before that time, for carrying on the farm, supporting the family, and his general expenses"; and during that spring those creditors brought suits against said Edwin to recover their said debts, and attached the live stock aforesaid; that said Fletcher advised that money should be hired to pay off those debts; that Lucy M. Hubbard, defendant's sister, also advised it and offered to loan the money for that purpose; that it was finally decided to take the money and settle the suits, which was done; that the money was not delivered to defendant in person, but both she and said Lucy M. understood how the money was to be used; that the defendant alone gave her note for said money; that she signed without her husband because she was considered the responsible party; that is, that she owned the property as a separate estate; that it "was expected by all parties interested that Edwin would go on and carry on the farm, and take care of the stock, and be able from his earnings, or from the produce of the farm" to pay the borrowed money. It was further reported, that the defendant renewed the note June 10, 1864, by giving a new one; that a payment of $ 30 was made August 1, 1864; that a second payment was made May 30, 1870; that May 16, 1876, the plaintiff, who became the lawful holder of the note, took a horse in part payment; that on April 14, 1882, the plaintiff wrote to the defendant urging payment; and on April 19 the defendant replied as follows, in part: "Yours of the 14th came to hand last night * * * and in reply will say, I am willing to do all that I can. I thought when you was down that I should get something of Russell, and come up and make a payment; but he cannot let me have anything. If I can renew it, should like to; I do not know what else to do. * * * I could sell my farm and pay it. * * * I think it would be better if I can sell, and I could pay it. * * * Be sure and let me know what I can do." The will was in part: "I give to my beloved husband, John Bowen, and my unmarried daughter, Amanda Bowen, jointly and for their use, the rents and profits of my estate, real and personal, during the life of my beloved husband, and so long to my daughter Amanda as she remains unmarried; meaning to devise to her a home and bequeath to her a living and support while she remains single. And if she should be married, it is my will that she be paid out of my personal estate the sum of $ 100. * * * It is my will also that my said daughter Amanda be paid the sum of $ 300 in annual payments of $ 25 each, the first payment to be made in one year from my decease, and so on $ 25 a year until the whole is paid; meaning also that after her marriage and departure from the homestead her rents and profits of the homestead shall cease, and on the payment of the above legacy all her claims shall cease. After the fulfillment of the above named devises and bequests to my beloved husband and daughter Amanda. I give to my daughter, Susan Angeline Bugbee, the whole of my real and personal estate." The report only stated as to said Amanda: "The defendant's sister Amanda, named in said will, lived on the farm with the defendant until her marriage in December, 1860."

Judgment for the defendant affirmed.

Cahoon & Hoffman, for the plaintiff.

The defendant's letter after the death of her husband constitutes a promise to pay the note. The defendant contends that this money did not go for the improvement of her separate estate. The farm and stock vested in her by will. In the forum of conscience they were her debts; and she so understood it. The reasoning of REDFIELD, J., in Hubbard v. Bugbee, 55 Vt, 506, between these parties, fully sustains us in claiming that the defendant is liable upon her promise. The attachments, if followed by judgment and sale, would have depleted the separate estate, and it is fair to presume that they would have been. Rawlins v. Rounds, 27 Vt. 17. The money was loaned upon faith in her credit and estate.

Harry Blodgett and M. Montgomery, for the defendant.

The contract proven was not such a contract that it could have been enforced against the defendant or her separate estate in a court of equity, and, therefore, does not constitute a sufficient consideration to support a new promise. Hayward v. Barker, 52 Vt. 430; 1 Pars. Cont. 432; Watkins v. Halstead, 2 Sandf. 311; Waters v. Bean, 15 Ga. 358. The money for which the original note was given went to pay the husband's debts. The defendant's separate estate in 1858 was worth nothing, charged as it was with the support of her father and maiden sister, etc.; so that the money was not loaned on the credit of that estate. Dale v. Robinson, 51 Vt. 20; Yale v. Dederer. 18 N.Y. 265; Willard v. Eastham, 15 Gray, 328; Priest v. Cone, 51 Vt. 495; Brown v. Sumner, 31 Vt. 671.

OPINION

POWERS, J.

It has been assumed in the argument of this case that the defendant took and held, under the will of her mother, a separate estate in the farm and live stock in question.

The referee in his report says that "The defendant took and had such an interest in said farm as is given by said will; and there was no evidence that she ever had any other interest or title therein;" and that "the defendant's title to said live stock was such only as said will gave her."

If, therefore, the defendant had a separate estate in the farm and live stock, it was created by the will of her mother. The clause of the will giving her this property is as follows: "After the fulfillment of the above named devises and bequests to my beloved husband and daughter Amanda. I give to my daughter Susan Angeline Bugbee the whole of my real and personal estate." Then follows a provision making it obligatory upon the defendant and her husband to live upon said farm during the lifetime of the testatrix and her husband, which condition was fully complied with.

The gift of the real and personal estate is in general terms, with no words limiting it to the separate use of the defendant. Such a conveyance does not create a separate estate, in the sense in which the term is used in the books.

There are two kinds of separate estates which married women may hold. One is the creation of courts of equity, the other is statutory.

An equitable separate estate can only exist, with the qualifications hereinafter noticed, when it is made such in the grant of the title by the use of unequivocal words showing an intent in the grantor to exclude the marital rights of the husband,--such as the words "to her sole and separate use," or other words of like import. If such words are not used, the title will pass to the married woman; but the use will go to her husband, under the rules of the common law. In other words,...

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